Considering the ICC and R2P in the Long Run

It’s easy to criticize the International Criminal Court (ICC) and the doctrine of The Responsibility to Protect (R2P). They have each been heralded as a transformation in the international community on behalf of human rights. They have each fallen short of their enormous expectations. It’s important however, that we consider their place in the long run, their utility for gradually changing norms, and the foundation they have set for the distant future.

Despite the ICC being created as the first permanent international criminal court “participating in the global fight to end impunity” it has investigated and prosecuted cases almost exclusively in Africa, accused of ignoring individuals committing crimes against humanity in other regions of the world. David Bosco argues that this is not so much a bias against Africa, but a fear of entering into geopolitical quagmires that may provoke the US, China, or Russia. Regardless, the ICC has been called out as a tool of Western neocolonialism in Africa, and member states have begun the process of pulling out of the ICC. In response, the ICC has attempted to extract itself from trying cases in Africa referred to it by nation states, and has begun to engage with violations of human rights outside of war on behalf of victim groups, such as the land-grabbing in Cambodia that has resulted in forced relocation, illegal imprisonment, and murder.

Many fear that this is a mistake, and will only increasingly antagonize the global south and reduce state membership. David Bosco writes regarding the ICC once again, that the ICC may be “crumbling before our eyes” and worries that the withdrawal of some prominent members such as South Africa will leave the court a shell of its form self. He’s hopeful that the ICC will remain an institution, but that it will have a “much more limited role in international politics than its founder has imagined.” However, should the goal of the court be engaged in international politics? A judicial branch of government is typically expected to be as apolitical as possible, deriving its authority from law, accepting cases from lower courts, not states and politicians.

Kirsten Ainley of the London School of Economics sees this as the best opportunity for the ICC to grow and evolve into an independent institution. If the UN Security Council provided more cases and support for the ICC, it would constantly be dragged into political nightmares and inevitably be used as a tool by those states in power. Instead, it now has the opportunity to refocus its efforts, such as on “building and policing national justice systems” which will have a greater and more lasting impact than targeting politically controversial individuals. By working with national courts through council and support, and acting as an advocate for victims, the ICC will shape international norms and extend the rule of law. These norms have already begun to take hold, as states threatening to exit the ICC have faced massive backlash both domestically and from organizations such as Human Rights Watch lambasting these efforts in South Africa and Burundi.

The R2P is discussed disproportionately in light of its failures rather than its effect on international norms, expectations, and discussions as well. Some claim outright that R2P has completely failed as a result of its reliance on the UNSC for being enacted. Others have gone so far as to call R2P a threat to the international system’s legitimacy predicting its final death after the invasion in Libya. Alex Bellamy, Director of the Asia Pacific Centre for the Responsibility to Protect, insists that despite past invasions in the Middle East that have only made things worse, efforts to enact R2P in Syria against the Islamic State should be redoubled. He goes onto say later that R2P has not failed, but that the international community itself has failed to commit to “a disarmingly simple principle.”

Kirsten Ainley instead argues that “there are at present no feasible pathways to reform” and efforts to strengthen or clarify will only antagonize states opposed to its interventionist nature and its threats towards national sovereignty. She hopes that the ICC and R2P as complementary systems will be allowed to change slowly and gradually, not forced to fix the world’s problems in their infancy.

Both the ICC and the R2P are completely reshaping the way states, international organizations, transnational corporations, and individual actors are discussing issues of human rights. Even in their failures they have given us a vocabulary with which to wrestle with these ideas, and expectations for the direction the international community is heading towards. Instead of discussing whether the ICC and R2P have failed, we should appreciate their subtle and steady influence, and imagine how they will shape the distant future, when they may have a very different presence in the world.

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